February 28, 2008

There's been a lot of discussion of whether John McCain meets the constitutional requirement for the presidency. He was born in the Panama Canal Zone, where his father was stationed as a military officer. The NYT covers the story today:

“There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.”...

Senator Lindsey Graham, Republican of South Carolina and one of Mr. McCain’s closest allies, said it would be incomprehensible to him if the son of a military member born in a military station could not run for president.

“He was posted there on orders from the United States government,” Mr. Graham said of Mr. McCain’s father. “If that becomes a problem, we need to tell every military family that your kid can’t be president if they take an overseas assignment.”

I love the contrast between the academic and the politician, and I think the politician's legal sensibility here says more about how the Supreme Court would ultimately decide the question than any academic inquiry into the text and the history of the constitutional clause. Graham, by the way, is a lawyer (with a law degree from the University of South Carolina) and more than 6 years of service as a lawyer in the Air Force. He still serves in the Air Force Reserves, where he is a colonel and a Senior Instructor at the Air Force JAG School. He knows law, and his interpretation of the clause is not just political instinct.

Ms. Duggin and others who have explored the arcane subject in depth say legal argument and basic fairness may indeed be on the side of Mr. McCain, a longtime member of Congress from Arizona. But multiple experts and scholarly reviews say the issue has never been definitively resolved by either Congress or the Supreme Court....

Lawyers who have examined the topic say there is not just confusion about the provision itself, but uncertainty about who would have the legal standing to challenge a candidate on such grounds, what form a challenge could take and whether it would have to wait until after the election or could be made at any time.

And this is the point: No one should be seen as having standing to sue. No one who might conceivably file a lawsuit has a concrete and particularized injury that would be redressed through the disqualification of McCain. So there will not be a Supreme Court case interpreting the clause. If the Electoral College ever selects someone who presents this problem, it will be theoretically possible for Congress to reject the choice on constitutional grounds, but, politically, that too is inconceivable.

The real constitutional interpretation is taking place right now, as we decide whether to accept a man with this problem as the nominee, and later, as the candidate. I think we as a people have already answered the question as to McCain. None of his opponents are using disqualification as an argument and no one is concerned about it. Think of how different it would be if Arnold Schwarzenegger ran for President. The issue would be debated and argued, and I think we'd see him as disqualified and, because of that, he'd never reach the point of nomination. Can you picture Barack Obama or Hillary Clinton trying to defeat McCain by making the argument that his birth in the Canal Zone disqualifies him? They'd only make themselves look bad. The argument is so unattractive that no one serious will make it, and therefore the question, for all realistic purposes, has already been answered.

Didn't this issue come up in 1964, when Barry Goldwater was running for president? He was born in 1909, and Arizona wasn't admitted to the union until 1912. It would seem that being born in the Canal Zone would be exactly analogous.

No one who might conceivably file a lawsuit has a concrete and particularized injury that would be redressed through the disqualification of McCain.

This might be obvious to a lawyer, but why does someone have to have an injury in order to challenge something on constitutional grounds? If it's unconstitutional, it's unconstitutional regardless of injury, right?

The real dopeyness of the article and of the NY Times, is the argument that McCain's birth in the Canal Zone "raises questions." It doesn't raise any questions. If you are born to U.S. parents you are "naturally born." So said the first Congress (populated by the founders) which passed a law that said so and has never been challenged. If someone wants to take a more literal view of what naturally born means then perhaps we should question any person who was born by C-section, or born in a hospital rather than in the wildnerness (the natural way).

Oh for Pete's sake. What a waste of time. Are Democrats desperate enough to push this issue? Are they willing to call the son of a soldier 'not natural born' because Dad was serving his country far away?Good luck with that.

Isn't Obama strong enough on his own already?Is there something about Obama's past that has unnerved the media enough to pick on this non-issue?

Coco Solo where McCain was born was not just a military base at the time it was also considered US territory.

The argument that Hillary or Obama would not go there-well -I thought that the Democratic party would never challenge the absentee ballots at Eglin AFB in Okaloosa County of the men and women sitting over in the DMZ-but I saw that go down personally.

When they could not get local lawyers to do the deed they hired guys from Atlanta and chartered them into the VPS airport.

So-I'm not so sure they would not go there.

You know as an aside I've been mad at Liebermann for years about that and just recently I found where he urged for the votes to be counted. That didn't make much news at the time for obvious reasons.

Interesting aside Romney's father-George Romney ran for President in 1968-even though he was born in of Chihuahua, Mexico.

That wasn't the reason he didn't win the election however, as a candidate he cemented his fate by claiming that he was brainwashed by US officers while he was in Vietnam to vote for the war.

He unfortunately used that language something to the effect-a fantastic brainwashing- and effectively ended his own chances.

At the time that language would have been considered under the conditions fairly inflammatory.

Justin,It arises from the "case or controversy" requirement of Article III, and the original understanding of what constituted the "judicial power" vested by that article in federal courts: "the Constitution presupposed an historic content for that phrase and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. … Both by what they said and by what they implied, the framers of the Judiciary Article gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union. Judicial power could come into play only in matters that were the traditional concern of the courts at Westminster and only if they arose in ways that to the expert feel of lawyers constituted ‘Cases’ or ‘Controversies.’ It was not for courts to meddle with matters that require no subtlety to be identified as political issues. And even as to the kinds of questions which were the staple of judicial business, it was not for courts to pass upon them as abstract, intellectual problems but only if a concrete, living contest between adversaries called for the arbitrament of law." Coleman v. Miller, 307 U.S. 433, 460 (1939) (opinion of Frankfurter, J.) (footenote omitted).

Sloan, I disagree. Congress can pass laws pursuant to the naturalization power, but as the Sarge said above, it's pellucidly clear that "natural born" citizen is a differentiation from naturalized citizen; compare Art. I Sect. 2 (”No person shall be a Representative who shall not have … been seven years a citizen of the United States”) and Sect. 3 (”No person shall be a Senator who shall not have … been nine years a citizen of the United States”) with Art. II Sect. 1 (”No person except a natural born citizen… shall be eligible to the office of President”). The Constitution authorizes Congress to set rules for naturalization, and it permits citizens who have completed the naturalization process defined by Congress to be elected to Congress. It’s clear that it does not permit naturalized citizens to seek the Presidency.

It seems unlikely that an act of the first Congress would be ultra vires - but, in view of Marbury, not inconceivable. And in any event, in my view, that the Congress felt it necessary to (attempt to) confer status as natural-born citizens on persons born outside the U.S. strongly supports my premise that the original understanding of "natural-born citizen" meant "born under sovereignty of" - see the exception proves the rule).

(By the way, "born under the sovereignty of the U.S." as the original understanding is why I agree with Charles that Goldwater's birth in sovereign U.S. territory is exactly analogous to McCain's birth in sovereign U.S. territory.)

Grandfather John S. McCain commanded a carrier task force in the Pacific during World War II.

His father John S. McCain, also a four-star admiral, served as commander-in-chief of Pacific forces from 1968 to 1972.

Father absent for long stretches, says Wiki. Attended about 20 different schools...Unruly, quick tempered, defiant. Nickname... "McNasty"... graduated sixth from bottom of his class at Annapolis..."being on liberty with John McCain was like being in a train wreck."

Obama...

His mother, an atheist, and non-American born father separated when he was two...mother remarried another non-American born man when he was six...father forced to return to Indonesia for unclear reasons...relocates to Jakarta from ages 6 to 10...returns to Hawaii and lives with grandparents (not mother?) from fifth grade on...mother divorces second husband...son acknowledges drug use throughout high school and college years.

A young relative of mine, born in the Canal Zone, has always insisted she was a naturalized citizen and no amount of arguing on my part could change her mind. What exactly does the military tell these families?

HT to Geraghty at NRO: Those NYT's editors sure get paid more than bloggers but their fact checking really sucks.

note the first line of the story: The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president?

So by common definition of CONUS they are saying that folk born in Alaska or Hawaii are not eligible?

I hate to say this, especially because I personally like the First Congresses definition better, but I believe the 14th Amendment supercedes the notion of "born to parents = naturally born". I honestly hate to say it because I'm not enamored of the complexity that's resulted. If I remember my history correctly, a lot of the language in that amendment was to definitively grant freed slaves the same Bill of Rights protection as others by unquestioningly classing them as citizens, but the unfortunate consequence ended up being that "jus sanguinis" got jettisoned. Regardless, the point here is that the 14th Amendment superceded the language of the First Congresses declaration, for better or for worse.

I know there's some silly paperwork necessary to declare a child born on a US base overseas as a US Citizen; there's ringamorole about proving at least one parent was a citizen for 5 years, yadda yadda... it's a mess, but from what I gather, it's routine. Now, whether that actually grants "natural born" status (as opposed to "naturalized"), I don't know. Better informed minds than I need to clarify that.

If you ask me, I really like the idea of jus sanguinis, but it's not up to me.

Regarding McCain specifically: Wasn't the Canal Zone considered US Territory at the time McCain was born? Contrary to popular belief (and catching me completely off guard when I looked it up) military installations are not automatically considered US soil; if I remember correctly, it's the Armed Forces agreement with the host nation that spells out a given base's status. But, in the specific case of the Panama Canal, I thought the Canal Zone was US soil. Which would render any other question regardng McCain's citizenship moot. Does anyone know the status of the Canal Zone for certain?

Wasn't the Canal Zone on a long term lease from Panama (just like Guantanamo Bay)? If so then McCain is certainly not "natural born" as provided in the Constitution. The operative question is not whether the location is CONUS or OCONUS but whether it is sovereign U.S. territory. Territories (e.g., Guam, Puerto Rico, Hawaii and Alaska prior to statehood) are part of the U.S., military bases, lands under long term lease in foreign countries or even our embassies overseas are not. (I'm sure that Simon will get hyper-technical with me and claim that embassies are "sovereign", and in a sense they are, but only as a legal fiction--the sovereignty is limited and can be withdrawn at any time, according to certain rules, by the host country).

Simon of course is wrong. He applies his impeccable amatuer legal reasoning without bothering to examine how the State Department views the situation.

If you are born in a military hospital overseas, or even of American parents overseas, your parents register the birth with the U.S. consulate and you are naturalized immediately, but you are not a natural born citizen.

It seems like the only pertinent question is what was the status of the Canal Zone--did Panama cede all sovereignty or was it a long term lease.

The interesting question will be if it was just a lease (even in perpetuity) and McCain becomes president, will that strengthen the hand of the detainees at Gitmo, as the government has all along contended that Gitmo is not in the U.S.?

Georgia as a matter of fact. Unlike Simon I actually went to law school. Hated every second of the last two years, but still stuck with it and passed the Bar first time around (without taking a bar review course). Practiced for a year, where my disgust for legal trade (I don't consider it a profession) and lawyers grew even more. Quit and never looked back.

A child born to a U.S. citizen parent usually acquires U.S. citizenship at birth, even if the birth occurs overseas. Parents should contact the Consular Section as soon as possible after the birth to make arrangements to obtain a Consular Report of Birth Abroad (CRBA.) A CRBA is an English language document acceptable in the U.S. as a birth certificate. A CRBA is proof of U.S. citizenship and can be used to acquire a U.S. passport.

nothing about naturalizing. It seems to be about getting what is effectively a US birth certificate for your infant who is already a citizen

Unlike most lawyers (and people like Simon who just play them on the internet), I will admit when I am wrong.

And as I said I was wrong on this issue. Apparently, our constitutional law host couldn't be bothered to look up the pertinent statute either. I actually assumed this might be a difficult question. It isn't.

"Isn't everyone born in a [birth] canal zone?" No, there is something called a "c-section birth."

The Times must have reporters looking at every aspect of McCain's life to try and derail his presidential bid. Look at the non-sex scandle sex story from just a few days ago. They seem to have nothing better to do.

"And according to the law, McCain is indeed a "natural born citizen" so this thread can be ended.

Yes, but not before noting a deranged, rabid Leftist took the drill sgt.'s bate, "McCain, son, grandson, great grandson, with war hero ancestors going back to at least the civil war, born to US parents on US territory in the service of his country isn't eligble?

a son of an illegal immigrant who crosses the border and delivers at San Diego County Hospital is?" running full steam until the chain around his neck yanked him to a full stop.

Freder, you may want to check out Simon's complete argument before so quickly announcing your superiority by virtue of possessing a license from the state. It does not, in fact, depend on the same "technicality" that renders embassies "sovereign territory."

You might also want to consider whether Congress has complete discretion to define terms used by the Constitution. The mere fact that Congress has passed a statute defining "natural born citizen" does not settle the issue. If Congress passed a statute stating that police officers wiretapping your phones without a warrant did not constitute a "search" or "seizure", would you say, "hey, Congress defined the term, and that settles it?" Of course not.

Thank heavens you have that little piece of paper from the state entitling you, and only you and your fellow licensees, to analyze the law.

Roger said..."Freder: can you tell this board what legal bar you are admitted to? that bit of information will allow us all to assess your legal commentary and give it the weight it deserves."

You don't need to know whether he's a member of the bar to assess the quality of his arguments. What counts is the quality of his arguments. They are, without variance, without even the most remote merit, something that wouldn't improve if he's managed to pass the bar. Which is why he remains persona non grata; I won't read his comments or respond to them and urge others to do likewise.

Another example of Pat's point about Congress' power to redefine terms: Congress can ordain and establish inferior courts in which to vest the judicial power of the United States, but can it enact a statute saying that "the judicial power of the united states that we vest in the U.S. District Courts in Wisconsin will not include the power to adjudicate disputes between litigants"? Of course not. Congress can vest some (see Sheldon v. Sill) or all of the judicial power in inferior courts, but it can't change the nature of the power that it vests. Likewise, it can provide rules for naturalization, but it cannot redefine the meaning of "naturalization"; if it could, consider the consequences: Congress could define anything as "commerce" (and not only in the house-that-jack-built approach of thee pre-Lopez era) and proceed to regulate it. Words have meaning.

McCain is as American as you can get. The issue of right to be a natural American by blood (jus sanguinis- born of one or more US citizens anywhere - was settled long ago and only momentarily quibbled about by "legal scholars" with plenty of free time when George Romney and Barry Goldwater ran.

The real issue Americans now have, is our country effectively being the last of any country people want to get into - that has stupidly kept jus solis, right of citizenship by location of birth - even if the baby is born of illegal invaders. (Other 1st World nations have got rid of it as it led to illegal invaders or 3rd world "tourists" mainly interested in dropping an anchor baby so they could become instant 1st Worlders)

Justin said "This might be obvious to a lawyer, but why does someone have to have an injury in order to challenge something on constitutional grounds? If it's unconstitutional, it's unconstitutional regardless of injury, right?"

Right, but a federal court won't have the power to say so. Courts say what the law is as part of the process of resolving real disputes between adverse parties, and the requirement of standing is part of the analysis of the judicial power. It would in fact be unconstitutional for the court to decide the substantive question without the minimum requirements of standing (ie, injury, causation, and redressability).

freder: "Apparently, our constitutional law host couldn't be bothered to look up the pertinent statute either. I actually assumed this might be a difficult question. It isn't."

Apparently, our sometime commenter thinks nothing of speaking like an impertinent asshole to refer vaguely to a point that he thinks makes the case easy We're talking about the meaning of a constitutional clause. A statute doesn't change the constitution, so if your point is that there is a statute that makes children of citizens citizens at birth, you haven't dealt with the constitutional question yet. Now show some respect, stop being a jerk, and put what you have to say in the form of a question that deserves an answer. You're embarrassing yourself.

Freder: thanks for the information--and congratulations on your achievement. (At some point I would be most interested in knowing why you became dissolutioned with the legal profession/trade after such a relatively short period of time after such a lengthly and expensive education.)

Coco Solo where McCain was born was not just a military base at the time it was also considered US territory.So a Filipino born between 1902 and 1946 could run for President of the US? Because during those years the Philippines were a US territory.

The question is does ius sanguinis apply, as is commonly thought, or only ius solis. As for justiciability, all Americans are hurt by having a foreign ruler (remember 1776? George III? World War II?), so all Americans would have standing to sue.

I was her only son and she wanted another to carry on the family name.

The family name ends with me and I am gay so it ends.

All of my cousins on my dad's side are girls.

My grandfather, who had alzheimers, never remembered anything in his later years, but always asked me when I was going to have a kid to carry on the family name.

I live with this guilt every day of my life fellow republicans.

I ruined my mothers birth canal zone so she could have not more babies and ended the family name because I am homosexual.

I do have an ass of a 13 year old-as my doctor said to me in my last prostate exam- and for that I am grateful. I think have the ass of a 13 year old boy is one of my proudest accomplishments. So in the long run things do work out.

our country ... has stupidly kept jus solis, right of citizenship by location of birth ... (Other 1st World nations have got rid of it as it led to illegal invaders or 3rd world "tourists" mainly interested in dropping an anchor baby so they could become instant 1st Worlders)

This leads to its own kind of stupidity. Just as a tourist's baby is automatically a US citizen if delivered in Boston, until recently, by virtue of my ancestry I could become a German citizen far more easily than a Turk from the second generation born in Germany.

I just love it when Simon throws latin phrases around. And how he can decide who can comment on this thread.

Apparently, our sometime commenter thinks nothing of speaking like an impertinent asshole to refer vaguely to a point that he thinks makes the case easy We're talking about the meaning of a constitutional clause. A statute doesn't change the constitution, so if your point is that there is a statute that makes children of citizens citizens at birth, you haven't dealt with the constitutional question yet.

It seems to me that the NYT, the lawyers they quoted, or you would have at least cited the appropriate section of the 8 USC Section 1401 as a basis of the discussion. Then I guess we could have a long-winded discussion about how that statute may or may not be sufficient or the Congress overstepped its bounds in passing the statute.

I daresay you would slap down one of your students pretty hard who didn't even mention it if you had an exam question on it. Yet here I am embarrassing myself for pointing out that no one bothered to even mention the statute.

You are the Constitutional Law Scholar, you tell me why the statute makes this whole discussion rather silly and why you shouldn't be embarrassed for not even mentioning it in your original posting.

WRT Pat's 10:53 comment, I'll add that's the nub and extent of the disagreement between us on the issue; he has a really good comment on the post of mine he linked to reaching the same result by a different route.

madawaskan: there are two separate and independent paths to being a citizen at birth. If being born in a territory counts (Goldwater, McCain), then is an Imelda Marcos (born 1929) eligible to run for US President? This is the reductio ad absurdum.

When I was a young little gay playing with dolls my mom would say you ruined my birth canal zone silly sissy sally.

My name at home was silly sissy sally. My sisters called me that, my mom and all the neighbor kids.

My dad didn't though until the morning I came down for breakfast with a scarve on my head, put the song, Dark Lady by Cher on the record player and lip synched it to my entire family while pretending the scarf was my cher hair while licking my lips.

FLS - under my reading of the history (see the post that Pat linked to above), the answer to that question is potentially "yes" - it depends on whether the Phillipines were under the sovereignty of the United States in 1929. I haven't done the research to answer that question, but just to frame an example, Guantanamo Bay is under U.S. jurisdiction but not under U.S. sovereignty, because of the terms of our treaty obtaining the former; the canal zone was under both, again because of the terms of our treaty with Panama. So you'd have to look at what status the Phillipines had vis-a-vis American sovereignty to answer that question.

Freder: I slapped you down because you were RUDE and you are still being RUDE. The statute could be discussed but it wasn't the subject and it is a detail that could be explored and I could discuss it at greater length if I chose to. I don't appreciate the WAY you raised the question. Look at your language and perceive what an asshole you sounded like. Try apologizing and asking questions or raising issues in a decent, civil way and I would be happy to discuss them. Talking to me as you did is asking to be slapped back. Get a clue.

If I remember correctly, a US military installation in a foreign land is considered US soil, thus if you were born on a military installation you were born in the United States. The same holds true for an embassy or consulate abroad, a US ship at sea or a US plane in the air.

My personal favorite is vae victus which if I could work my will, would be hung over the cell of every Islamofacist we captured.

Alas....

I daresay you would slap down one of your students pretty hard who didn't even mention it if you had an exam question on it.

Althouse weblog

Althouse law exam

Which of these two are not like the other?

you tell me why the statute makes this whole discussion rather silly and why you shouldn't be embarrassed for not even mentioning it in your original posting.

Well I think she kinda makes the case right here:

We're talking about the meaning of a constitutional clause. A statute doesn't change the constitution, so if your point is that there is a statute that makes children of citizens citizens at birth, you haven't dealt with the constitutional question yet.

MCG, there's a statute that grants citizenship from birth for children of U.S. citizens in certain circumstances, 8 U.S.C. § 1401. But my argument is that that statute is necessarily passed under the one grant of power it could possibly be rested on: Congress' power to provide rules for naturalization. So a person may well be a citizen from birth pursuant to § 1401, but they are a naturalized citizen from birth is my point, a distinction that makes any odds at all for one and only one purpose: eligibility to the Presidency. The meaning of "natural born citizen" has to rest on the original understanding of that phrase in 1788, which is necessarily a question of what the common law comprehended the term to mean, and which in my view - as I explore at more length in the post Pat linked to above - is most plausibly that a person born on soil over which the United States is sovereign is a natural-born citizen, something which Congress has no power to alter. As Ann pointed out above, "We're talking about the meaning of a constitutional clause. A statute doesn't change the constitution, so if your point is that there is a statute that makes children of citizens citizens at birth, you haven't dealt with the constitutional question yet."

I'm amazed that commenters here think they can talk to me in a way that no student would talk to a law professor and then expect me to treat them the way I would treat a student. Context matters. I'm a law professor but I'm not your law professor. Or maybe I am, but you're using a pseudonym. In which case you are asking for and getting the non-student treatment.

Freder: I slapped you down because you were RUDE and you are still being RUDE.

I rarely type in ALL CAPS, which I think is the blog equivalent of raising one's voice.

Sorry if I was being RUDE. It amuses me to no end that everyone else on this site who doesn't directly criticize you or point to your glaring oversights and frequent boneheadedness can be as rude as they want.

It is the height of hypocrisy to call someone an "impertinent asshole" and a "jerk" and yet complain that they are being rude. I hardly think such language is indicative of polite society.

My point of course was that if Ann had a student who didn't even mention the statute on the exam he would be slapped down. It was a criticism of Ann for not raising the issue initially. Apparently I was a jerk and impertinent asshole for pointing out her oversight.

Now that Simon has brought the statute into play (and as I am sure, as a naturalized citizen, he must realize there is a difference between a naturalized citizen and a citizen by birth as defined in the statute), it is of course pertinent.

And no Ann, I wasn't and am not one of your students--but you would have hated me if I was.

Which, ironically enough, is the basis of your answer to Justin above. "Federal courts, we are told, can only expound the law in the context of a case. They must have a concrete setting - a system of facts including injured plaintiffs, injury-causing defendants, and a real need for a remedy - to have sufficient occaision for saying what the law is. An advisory opinion - just saying the law in the abstract - is anathema." Althouse, Saying What Rights Are, 1991 Wis. L. Rev. 929, 932 (footnotes omitted). As you said there, "Constitutional cases serve two broad goals: they provide relief to those deprived of their rights, and they announce rules of law. They speak to the parties to the case and they speak to the rest of society. Cases are disputes that the courts must address, but they are also occasions for saying what the law is." Id. at 938. But they are, first, foremost, and necessarily and irreducibly, disputes between injured persons. Context is the difference between dicta and holding; between the dutiful discharge of the judicial power and its abuse.

Another thing to ponder. Natural-born is not just of soil, it is a definition commonly used to reference being of the blood. In the context of the times of the Constitution, natural-born referred to people in the European aristocracy by right of hereditary blood, vs. merit-named aristocrats.

So legally, an argument can be made a person is a natural-born American in need of no naturalization because they are born to an American citizen anywhere in the world and the parent(s) do not reject US citizenship for the infant for some other citizenship registry.

That is how it has legally played out. (My brother was born in Germany to two Americans, and he required no naturalization paperwork.)

And the quibble about territories, protectorates, sovereign US soil of embassies hasn't mattered for determining pure US citizenship by blood. Courts rejecting petitions to rule on the past right of citizens to run for President or be President if they were born on foreign soil establish precedent(George Romney - Mexico, Chester Arthur - more likely than not Canada, by his biographers).

In Romney and Arthurs case, no fuss because no one doubted they had American parents. In Romney's case, even two born in Utah territory. As Hoover's VP, Charles Curtis was, (Kansas territory), as Goldwater was (Arizona territory). Or candidates born abroad to US parents (Lowell Weicker - France)

Even in America, blood matters more than birthplace and birth location should hopefully matter less in future years if we are to end illegal's babies, even the (for now) hypothetical offspring of an enemy invader, being used to amnesty whole families to come to America.

The 14th should interpret "subject to the jurisdiction of US laws" as applying only to foreigners here legally, not those deliberately breaking our laws to be here. The 14th's mention of birthright citizenship was simply meant as an artifice to allow slaves who were born here to become citizens. The later Wong case made the child of Chinese with legal residence here a citizen.

Let's go over some con law 101 to show why McCain couldn't be challengedi. Injury in fact- 1. Must be an empirically demonstrable injurya. Actual or Iminentb. Concrete, Particularized2. Unconstitutional to bring a case without an injury in fact3. Must be a personal injuryii. Causation/traceability1. Must be a causal connection between the injury and the conduct complained of2. Has to be fairly traceable and not the result of a third party not before the courtiii. Redressability1. The remedy sought must actually redress the situation if the court were to implement it

As Simon and Ann point out, the proper question is "what does the phrase 'natural born citizen' mean as used in the relevant Constitutional provision?" As I explain in my own post at Stubborn Facts, McCain is a "natural born citizen" regardless of the sovereign status of the Panama Canal Zone.

As Simon pointed out in his original post, the Supreme Court has long told us that legal terms of art in the Constitution are to be given the meaning those terms had in the common law of England, the legal system with which the Framers were most familiar, and from which we must presume they drew those terms of art.

If you look at the relevant portion of Blackstone's Commentaries, you'll find this crucial explanation: "the children of the king’s embassadors born abroad were always held to be natural subjects." McCain's parents were in the Panama Canal Zone as agents ("embassadors") of the United States. Under the English common law meaning of "natural born citizen" [subject] prevalent at the time of the adoption of the Constitution, he would thus have been considered a natural born citizen of the United States, not a "naturalized" one.

"Think of how different it would be if Arnold Schwarzenegger ran for President. The issue would be debated and argued, and I think we'd see him as disqualified and, because of that, he'd never reach the point of nomination."

I think this is true and it is how such a possibility would play out. But, (and you knew there would be a but) hypotheticaly; what if Republicans did just go ahead and nominate him? Wouldn't all the things written by craig above still be true? Who would have standing to bring this to a court? Or would it be handled by Congress? What if they chose not to challenge it?

When she confronted the Witch-king, he boasted that "no living man may hinder me," referring to the 1,000-year-old prophecy by the Elf-lord Glorfindel, foretelling that the Witch-king would not "fall by the hand of man". Éowyn then removed her helmet, exposing her long blond hair and declared:

How, then, does one achieve standing to challenge a presidential candidate? If no one has standing to challenge McCain (who we all think is probably eligible), then what happens if a party nominates someone who is obviously not eligible (like Arnold Schwarzenegger or Prince Charles)? Would we (the citizens) have standing then? If not, then the clause is unenforceable.

" The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(…)

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

And Section 1403;

(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.

(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

Last time I looked, McCain's parents were/are citizens and they both had lived in the U.S. before his Navy father was stationed at a military facility in the Canal Zone. But who cares about facts? Certainly not the NYT.

It would in fact be unconstitutional for the court to decide the substantive question without the minimum requirements of standing (ie, injury, causation, and redressability).

Seems like an action for a declaratory judgment by the Dem nominee would be sufficient, or ought to be. Otherwise we'd have a Constitutional mandate with no way of enforcing it.

That said, in this circumstance --given the particulars of McCain's personal history-- it's very hard to feature the Court ruling against him in any event, as a candidate or as an already elected president.

Justin, it is entirely possible that there could be constitutional violations which do not give rise to standing for anybody. If you're interested in the topic, see my take on it here, and follow the links through to Simon's posts on the same subject, all in reference to who, if anybody, might have standing to challenge a violation of the Establishment Clause of the First Amendment.

My own take is that the Court should think long and hard when resolving a standing issue in a way which might potentially cause nobody to have standing to challenge a constitutional violation. However, I do not insist that such a result is prohibited by the Constitution, necessarily. I simply say the Court should work hard to avoid such a determination, where possible.

On standing to challenge the current topic, off the top of my head, I would suggest that the electors themselves might have standing. They take an oath to uphold the Constitution, and thus could conceivably be subject to penalty for voting for a candidate barred by the Constitution. Or maybe a state would pass a statute declaring that no elector, however pledged, could vote for an unqualified candidate, and the elector would risk legal injury by being forced to choose between two incompatible legal commands.

hmmmm---would someone remind me about how the MSM generally, and the NYT particularly, is superior to the "new media" because of all those layers of editors and fact checkers---

This may be the start of a NYT expose of the week on McCain--first the lobbyist thing; now the natural-born citizen thing; it wont be long before McCain's sordid past of mastication and matriculation is featured in the NYT. What a bunch of weenies.

It's not just "Up to WW II" that this occurred. Our daughter was born in Kenya in 1981; it was a completely routine matter to obtain a "Certificate of Birth Abroad..." at the US Embassy in Nairobi by handing in her Kenya birth certificate and copies of our US passports showing our US citizenship. (Trying to convince the WA State DMV official that the State dept certificate was her birth certificate in order to get a learner's permit... now that was a different matter.)

Justin said..."How, then, does one achieve standing to challenge a presidential candidate?"

But as I've said many times before - I do encourage you to follow the link Pat posted above, he, Marghlar and I had a pretty interesting discussion there - I think even phrasing the question that way is to get it completely backwards, to misconceive the nature of the judicial power as set out in the Frankfurter opinion I quoted above. The question isn't "who can I find who has standing to challenge this," the question is "do I have standing to question this"? The default rule is not that someone ought to have standing. If someone is actually injured by something, then they can bring a suit and can legitimately ask the judiciary to redress that injury. That's the correct context for the judiciary to exercise its lawsaying function - you have to think about why, as a structural matter, the courts have that kind of power in the first place. They have that power - this is Marbury's central point - because in the anglo-american tradition, courts have always had to determine what the law applicable to a given case is in order to determine how the case comes out, and in a hierarchical legal system, a hierarchically superior rule prevails over a hierarchically inferior rule.

So I have not idea if anyone has standing to challenge McCain. It's not my burden to show that someone does. And, for that matter, so what? Courts are not the only ones bound by oath to support the Constitution; I know most members of Congress don't act like it, but they are under oath to support and defend the Constitution, and I would say that even if an ineligible candidate won the nomination, even if they won the election, Congress should disregard votes for that candidate when acting in their 12th Amendment role. They'd be obligated to do so.

The first issue is that the Panama Canal Zone was an "unincorporated" territory of the United States. Which means it was not part of the United States; it was merely a place ruled by the United States. That distinction has always included the understanding that persons born in unincorporated territory were not "born . . . in the United States" for purposes of the Fourteenth Amendment. This is why persons born in American Samoa are American nationals, but not United States citizens. For constitutional purposes, then, McCain was not born in the United States, and is not a citizen jus solis.

(Whether that interpretation is proper or not, that is the current state of Constitutional law.)

Second, the implications of Montana v. Kennedy), Rogers v. Bellei, Miller v. Albright, and Nguyen v. INS pretty clearly establish that persons born to U.S. citizens are not, as a matter of Constitutional law, automatic citizens, but only gain citizenship insofar as Congressional law grants it, and that Congress can require that hoops be jumped to gain it. That is, citizenship jus sanguinis is not a matter of Constitutional law, but of statutory law.

(Again, whether that interpretation is proper or not, that is the current state of Constitutional law.)

That then, brings us to the legal heart of the controversy; do Congress's powers include the right to extend natural-born citizenship beyond jus solis, or are all citizenships jus sanguinis cases where citizenship has been extended through the Congressional power to set rules of naturalization?

To me, with my very limited view of Congressional power, the answer would have to be that Congress has no granted power to expand who is of the class "natural-born citizen", and there is no other exercise of the powers of the Federal Government which would require that Congress be able to expand that definition. Accordingly, McCain cannot be President.

The counterargument is that it would be a proper use of Congressional power, when defining naturalization rules, to also define classes that, as "natural-born citizens", are in no need of naturalization, above and beyond those who are Constitutionally "natural-born" citizens. In which case, there is the question of how far does this power extend -- does it only extend to those who would automatically have U.S. citizenship at birth, to those who were eligible for U.S. citizenship at birth but had to take action to secure it, or to anyone Congress decided to declare a natural-born citizen?

(In the latter case, imagine the U.S. Congress declaring Arnold Schwarzenegger a natural-born citizen of the U.S.)

My WWII comment was concerning the special status of Christian Missionaries overseas up until about then. They were handled by the State Dept in a similiar fashion to those "In Service to the US Government"

Another point for those who decide an Act of Congress can confer natural-born status; if there is a class of people who have "natural-born" status by statute, can they be stripped of such status, and thus Presidential eligibility, by statute, assuming their status as "citizen" remains intact?

Steven, I'm not familiar with the particular batch of cases you cite. Do they interpret "natural born citizen" or do they interpret the 14th Amendment, which uses very different languge?

If you accept the premise that we must define "natural born citizen" by reference to the phrase that term of art had in the English common law (and not doing so would have some pretty profound impacts on a wide variety of constitutional law), then you must accept that, at a minimum, the children of ambassadors born abroad are "natural born" citizens, because they were so considered under the English common law relied upon by the Framers.

A quick review of your cases shows that Montana v. Kennedy didn't consider any constitutional claims, only statutory ones, and thus is not on point. I see that Rogers v. Bellei, as I expected, deals with the 14th Amendment and its "born in" language, which is not relevant to the provision on presidential eligibility.

Thus, without checking more, I will presume that all of the cases you cite deal with ordinary citizen parents (probably involving only 1 citizen parent, in fact) who voluntarily went abroad for private purposes. McCain, whose parents were both natual born citizens, went abroad at the direction of and in service to the sovereign.

Based on my reading of the relevant case law and the Blackstone Commentaries, I think it is crystal clear that McCain, by virtue of those facts, is a "natural born citizen" of the United States.

I'm no McCain supporter, at all, but this challenge to his qualifications is just plain stupid, IMO.

The requirement in the Constitution is outdated and we should amend it to allow anyone who otherwise meets the qualifications to run for the Presidency.

The Founding Fathers put it there because at the time there were all sorts of royal hiers, contenders and pretenders running all over Europe and it was a legitimate fear that one of them might move to the United States, run for President and if elected proclaim himself 'king of the United States.'

That danger no longer exists, and it is stupid to deny a significant proportion of our fellow citizens the right to run for the highest office in the land should they wish to. They'd still have to get elected, after all.

If it wasn't for all the anti-immigrant lunacy that some people seem bent over sideways about, I suspect that there would be a bill out there right now to amend the Constitution to get rid of this requirement.

The statute says people in McCain's situation are citizens at birth. If the ius sanguinis applied, McCain would have been a citizen by birth. The choice of the word "at" instead of "by" thus indicates that McCain is plausibly not a natural-born citizen. We can, of course, amend the constitution, but McCain would most likely have gone to his reward by the time that was ratified. If McCain, a non-natural-born citizen, is allowed to become President, that would set a precedent to allow naturalized citizens to become President. And then Ah-nult (or the lovely Jennifer Granholm) could run for the presidency.

The statute says people in McCain's situation are citizens at birth. If the ius sanguinis applied, McCain would have been a citizen by birth. The choice of the word "at" instead of "by" thus indicates that McCain is plausibly not a natural-born citizen.

How is that plausible? If you are a citizen at birth, you are a natural-born citizen. The only reason you wouldn't be one is if you became a citizen at some point after birth.

Put another way: there was no point in John McCain's life at which he wasn't a citizen. He has been a citizen for exactly as long as he would have been if he had been born in Virginia. It obviously can't be argued with a straight face that he's not a natural-born citizen.

"I don't get Reagan's non-response to the Beirut bombings-in fact you could say that was the beginnings of the current "troubles"."

I think the beginnings were likely long before that (though I think it was indeed a terrible blunder to turn tail and run). In any case, I think at the very least that an event several years before the Beirut bombings was even more of an influence on the calculations of our enemies.

Eli Blake said..."If it wasn't for all the anti-immigrant lunacy that some people seem bent over sideways about...."

I'm duty bound to point out (once again) that almost no one is bent over sideways about immigration, they're bent over sideways about illegal immigration, and with very few exceptions, the folks concerned about this are anti-illegal immigrant, not anti-immigrant.

Congress certainly has purported to exercise a power to define certain persons as natural-born citizens, but it does not establish that they have the power and authority to do so. Congress can pass all sorts of things procedurally, but that doesn't necessarily mean they are laws.

If we conclude Congress lacks the authority, then the authority of Congress to make the rules for naturalization, but a lack of one to make the rules for defining natural-born, would make persons born in the Canal Zone under that law naturalized citizens at the moment of birth. (Granted, this may seem absurd, but the Constitution does not actually have a provision prohibiting absurdities.)

PatHMV:

Okay, I missed the common law argument you made (sorry, was skimming the thread instead of reading it closely), and I'm kicking myself over it. That does create the situation that, in cases where the parents are overseas at the behest of the government, one can be "natural-born" on a jus sanguinis basis, and bypasses the whole question of Congressional power. In which case, McCain is certainly natural-born.

I'm duty bound to point out (once again) that almost no one is bent over sideways about immigration, they're bent over sideways about illegal immigration, and with very few exceptions, the folks concerned about this are anti-illegal immigrant, not anti-immigrant.

In fact some of us think there ought to be more legal immigration, but we should change the rules to skim the best and brightest folks from around the world who want to come to America instead of the worlds poor and uneducated. More legal immigration, less illegal immmigration and end the anchor baby and family practices that lead to chain immigration.

He cites English common law as represented by Blackstone to show that the Brits at the time of our founders recognizd that the offspring of the King's ambassadors, living in a foreign country when born were English, not foreign, because their parents owed allegiance to the King, not a foreign prince, etc, etc.

the modern example would be at least, our diplomats and soldiers, "In the Service of the US Government".

The consequence of seriously arguing that the children of our military born overseas are not *exactly* the same sort of citizen as those born state-side would be...

...unpleasant.

Dealing with the State Department sucks, this is very true. But if there was ever *ever* the merest suggestion that my child's citizenship was affected by the fact that his parents were active duty military stationed overseas it would have been *decided* or the military wouldn't so much as function. Ask any who've been stationed overseas if they would serve if it meant that their children were not considered natural born citizens with absolute citizenship rights... and see how many go.

The NYT article claiming that parents worry about this is a vile lie. They do *not* worry about this. US citizen parents are confident in the loyalty of their country to them and their children.

Try to imagine something different than that. What would it look like.

I graciously accept the apologies that I am sure will be coming from you for your rudeness and dismissive attitude yesterday. Jim Lindgren over at Volokh has a nice piece on the meaning of "Natural Born" and cites Blackstone to show that McCain is a Natural Born Citizen and 8 USC 1401 certainly clarifies the constitutional language.

He also notes with "some amusement the struggles that some non-lawyers [and some lawyers as well] have been having understanding the language of Art II, Sec. 1 of the U.S. Constitution".

That comment is just plain RUDE.

I'm sure Ann will spend most of the day fuming about the implied insult.